Fixing the Civil Service Mess
By Walter Olson
City Journal, Autumn 1997
One big reason for America's global economic success is that its business managers have traditionally been free to hire and fire staff in search of high performance. Should public managers have freedom to do the same? Until now, the question would have seemed far-fetched: for decades, at the federal and state levels, as well as in big cities like New York, civil service laws have made it next to impossible to sack most government workers, even for blatantly subpar performance. The culture of public management takes for granted that employees in effect "own" their jobs as long as those jobs continue in existence. Public managers have resigned themselves to the entrenchment of incompetents and shirkers at every level, as a necessary evil of government service. After all, isn't the only alternative the evils of the spoils system?
Yet suddenly change--radical change, even--is in the air. Last year the State of Georgia enacted a landmark law that entirely abolishes civil service coverage for state employees hired after July 1, 1996; workers who start after that date can be hired and fired under rules similar to those governing private employment. As older workers retire, the new arrangements will in time cover the whole state workforce. This remarkable break from the past is the brainchild of a moderate- to-progressive Democratic Governor, Zell Miller. Around the country, in fact, a varied group of "neoliberal" pragmatists and centrist Democrats, as well as conservative Republicans, is putting reform of public-employee tenure on the agenda.
It's about time. Civil service regulations, once seen as a crucial element of sound governance, have long since become a key barrier to it. What today passes for civil service "protection" is something unrecognizably different from--and often even the opposite of--what reformers were trying to accomplish in the golden age of civil service, from the mid-nineteenth century to the mid-twentieth. Were such great reformers as Carl Schurz or Fiorello LaGuardia to return from the grave, they'd be appalled to see the abuses that have grown up in the name of their beloved cause--and might even be tempted to join Governor Miller in blowing up the system to start anew.
After all, even though Mayor LaGuardia was a strong friend of civil service principles, his biographers delight in telling stories of his unannounced drop-ins to city agencies, his explosions of temper when he caught employees misbehaving or slacking, and the drastic consequences for those employees-- which often included instant dismissal. One famous visit to a social service office resulted in the on-the-spot firing of employees guilty of infractions ranging from an unauthorized midday absence to rudeness to welfare applicants ("Take off your hat when you speak to a citizen!" the mayor had bellowed).
Nowadays a mayor or department manager who walked around sacking city employees might end up in Bellevue for delusions of authority. "Discipline, punishment, and removal have been made all but impossible by civil service procedures," write Frank Anechiarico and James B. Jacobs in their 1996 book The Pursuit of Absolute Integrity: How Corruption Control Makes Government Ineffective. They cite a vignette from a Columbia University study of city personnel management in which the inspector general of a 4,000-employee New York City agency asked each of the agency's four assistant commissioners to identify their ten worst employees. When he looked at the files of the 40 workers, not one bore even a single evaluation of "unsatisfactory." Why? Under civil service procedures, employees can challenge negative evaluations, like dismissals--a dispiriting maze few managers wish to enter, given so little hope of relief at the end.
Every city has its horror stories. In Chicago, firing a park worker for incompetence takes 84 steps. In Boston, by the 1970s a dismissed public employee could petition four different panels, any of which could order reinstatement and none of which had authority over the others. The employee did not have to petition all the panels at once but could wait until he lost at one stage before moving on to the next. In Philadelphia, it took ten years to fire a school employee who was late to work nearly every day; he had pleaded a "neurotic compulsion for lateness."
The resulting personnel paralysis isn't limited to big cities. The Washington Monthly reprints a 1996 memo from thrifty, no-nonsense New Hampshire, for example, in which the state Personnel Appeals Board had scheduled a hearing to consider the appeal of Labor Department employee Phyllis Dobe against a written warning she'd received for sleeping at her desk. "Ms. Dobe alleged that she had not been given sufficient time since her first warning to correct her problem of sleeping at work," the memo reports. " She also alleged that the Department of Labor had an obligation to be more proactive in assisting her with overcoming her sleeping problem.' " A formal, quasi-judicial hearing was being convened for an appeal from a mere warning; an actual dismissal was nowhere in sight.
"Imagine working in an organization that makes it so hard to fire nonperformers that managers have quit trying," write David Osborne and Peter Plastrik in The Washington Post Magazine. "Imagine hiring from a list of the three top scorers on a written test that has little to do with future performance on the job. Imagine routinely losing your best employees because you can't pay them what they're worth. And imagine enduring layoffs in which those with seniority bump' other employees--so when 100 people lose their jobs, 400 more play musical chairs, winding up in jobs they aren't trained for and don't want." Thanks to civil service rules, those conditions, they say, prevail in a typical government organization.
Could this really be what nineteenth-century reformers intended when they waged their great battle for civil service? Did they foresee that the law would entrench incompetence, but see that as a price worth paying to avert the still-greater ills of spoils? The short answer is: of course not. In gradual steps, their reforms have been turned upside down.
The origins of the civil service crusade are familiar from every civics textbook. Early presidents had paid broad heed to the principle that ordinary federal servants doing their jobs well should not be turned out of their posts just because of a change of administration. Then, in the 1820s, Andrew Jackson introduced the open practice of ousting blameless and competent federal servants of the opposing party to make way for his own supporters.
The next half-century was one of widespread corruption (Jackson's appointee as collector of the port of New York promptly stole a million dollars), the politicization of jobs down to the humblest, and machine politics. Elected officials expected federal functionaries to devote many hours to campaign duties, and in turn, officials spent much of their time screening clamorous supporters searching for patronage.
In the years after the Civil War, distinguished reformers took up the cause of stopping the abuse. Despite their eloquence and energy, they made little headway at the national level until a calamity shocked the nation: a would-be federal jobholder who felt he had been cheated of promised patronage murdered President James Garfield. With the patronage issue now the focus of public attention, Congress consented to pass the landmark Pendleton Act of 1883.
The centerpiece of that act was a required competitive examination for certain categories of prospective government employees. Not only would this screen out the unqualified persons who had too often secured jobs under spoils--Treasury clerks who couldn't handle numbers, postal clerks who couldn't write a legible hand--it would tie public managers' hands on hiring. Obliged to choose from among the few highest scorers, they would no longer be able to guarantee jobs to hangers-on. Job seekers would stop crowding into campaigns and besieging officials' anterooms.
The ideal of meritocracy played a role too--the idea that talented applicants should have a chance to get ahead even if they're not members of groups with pull. In fact, to the consternation of nativists and racialists, competitive examination allowed immigrants and blacks to snag desirable federal posts. By the end of the century, despite the sway of Jim Crow throughout the South, competitive examination in the Foreign Service had led to the credentialing and posting of a number of black diplomats, a development that outraged Southern politicians and was ended only when Woodrow Wilson's administration, in a sop to its Southern Democratic backers that belied its progressive reputation, changed the rules so as to get rid of the blacks.
Equally important is what the Pendleton Act did not do: it did not insulate incumbent government workers from firing. True, the dismissal of competent federal employees had been one of the evils of spoils, and one faction of reformers--distinctly in the minority--did favor giving individual workers broader rights to contest dismissals. But according to Carl Van Riper's standard history of the American civil service, the leading advocates of reform actively "deplored" the idea of extensive rights of this sort, which they feared would lead to "removal by lawsuit." Thus George William Curtis, who headed the National Civil Service Reform League, observed that it is "better to take the risk of occasional injustice from passion and prejudice, which no law or regulation can control, than to seal up incompetency, negligence, insubordination, insolence, and every other mischief in the service, by requiring a virtual trial at law before an unfit or incapable clerk can be removed." Curtis and others took the view that competitive examination, by divesting managers of the power to fill vacancies with their cronies, would take away their main motive to dismiss competent incumbents. As the saying went, "If the front door were properly tended, the back door would take care of itself."
Over the century-plus since the Pendleton Act, two things have happened: rules changes have pushed shut the back door, then locked and barred it; and legal attacks on competitive examination have vitiated the effectiveness of that "front-door" checkpoint as a force for competence.
The first dawnings of the tenure idea were modest. By early in this century, Congress had moved to restrict removal of federal employees without " good cause"--a formula that in many other circumstances has evolved into a major obstacle to ousting the incompetent. But President Theodore Roosevelt elected to "clarify" the new policy by specifying that good cause would include pretty much any reason "other than one merely political or religious" and that any decision to hold formal hearings on a removal would be left wholly within the "discretion of the officer making the removal." The Taft administration returned to the issue in 1911 and tightened the screws on managers a bit by instituting rules requiring agencies to give dismissed employees notice of firing, written reasons, and a reasonable time in which to respond--but still no in-person hearing or appeal as of right.
Not until World War II and its aftermath did tenure emerge in recognizably modern form, and then as almost a by-product of initiatives that were popular for other reasons. A law passed in 1944 gave returning GIs a variety of advantages in applying for federal jobs, and two very powerful new weapons against losing those jobs once they landed them: automatic rights to an in- person hearing over dismissal and to an appeal. Since in the postwar years veterans came to constitute more than half the federal workforce, this was a crucial step. Before long, federal agencies were awash in personnel appeals, to the point that, when President Kennedy extended the right of appeal to federal employees who were not veterans in 1962, the step came more as a modest leveling of the playing field than a revolution in principle. Twelve years later, under pressure to protect politically dissident "whistleblowers," President Nixon issued an order ensuring an automatic right of appeal to an authority outside the employing agency, the Civil Service Commission (later, the Merit Systems Protection Board).
Meanwhile, the unionization of federal employees, which had gathered speed after President Kennedy issued an executive order providing for recognition of unions, strengthened the culture of tenure. Not only did unions help their members pursue their civil service procedural rights aggressively in individual cases, but they also lobbied tirelessly to protect and extend such rights on Capitol Hill.
At the state and local levels, parallel developments fully entrenched the tenure revolution by the mid-1970s. Although some differences at the state level are important--in Georgia and some other "right-to-work" states, for example, employees cannot be made to join a union as a condition of employment--organized public employees have taken a leading role in campaigning and campaign finance throughout the country. In many states they have emerged as a leading political force, with strong influence in both Republican and Democratic councils.
While these battles unfolded, fighting raged no less fiercely on a second front. Activists brought the institution on which reformers had staked their hopes--the competitive examination--under devastating legal attack as insufficiently attuned to the needs of racial minorities and other underrepresented groups, an ironic claim in the light of earlier history. As courts began applying the notion of "disparate impact," which judicial creativity had engrafted upon the 1964 Civil Rights Act, they soon found themselves on a slippery slope. Were they to hold suspect all hiring practices that did not result in a workforce proportional in race and gender to the surrounding population (as the Supreme Court had ordered in Griggs v. Duke Power), then they would find themselves holding nearly all results of competitive examinations to be suspect under the law, since such exams typically produce disparate outcomes.
For courts to venture into such matters at all would in an earlier day have seemed a dizzying assertion of hubris. In a 1900 case that made it into the law books, the Interior Department had dismissed one of its clerks, a Mr. Keim, on grounds of inefficiency. Keim sued, pleading unfairness. He managed to get all the way to the U.S. Supreme Court, but its answer was not a welcome one: the Court explained that though it was quite possible an error had been made, judges were not in a position to inquire, long after the fact, into matters "peculiarly within the province of" Keim's supervisors, in particular how well he had performed his job when compared with his fellow clerks. Reaching for what it evidently deemed an absurd comparison, the justices said courts might as well be asked to review "the results of a civil service examination."
But by the 1970s opinions on the competence of courts had changed drastically. Soon lawsuits over the results of civil service examinations filled courtrooms across the country, and judges began striking down whole exams, ordering particular questions and sections of tests thrown out or revised, and enjoining hiring agencies to lower passing scores, evaluate results using pass-fail scoring, or both.
The inevitable result: to undercut, and in some cases destroy, the value of competitive exams in guaranteeing a highly qualified applicant pool. After a court challenge to its test of applicants' abilities, New York City's Department of Sanitation required prospective employees to drag an empty sanitation basket to and from a truck, rather than to carry a full one, and 98 percent of applicants routinely passed. Pittsburgh's police department agreed to give more tries to applicants who had sued after failing a target- shooting test, thus establishing bad aim as another legally protected category. By the time Washington, D.C.'s written exam for firefighters had made it through the legal process, its passing grade was set at a "score one could expect to receive if one answered the questions randomly," as a federal appeals court noted. "Dart- throwing methods of test answering sufficed."
At the federal level, legal challenges led the Foreign Service to abandon its exam questions on history and politics as well as credits for foreign- language attainments. For eight years, another court blocked the federal government from administering the PACE exam, its standard exam for high-level executive and professional employees. The Washington Post found that the legal straitjacket on the hiring process was "almost universally blamed" for what a commission called a "widespread sense that the overall quality of federal entry-level employees is declining"; a blue- ribbon commission had diagnosed a "quiet crisis" in attracting competent applicants to the federal service.
True, in the last ten or 15 years, the legal climate for testing has thawed slightly, especially since a couple of Supreme Court decisions that upheld particular uses of tests, such as South Carolina's use of a teacher- competence exam. Even so, the atmosphere has changed unrecognizably from the old days, and the climate of opinion in the law schools and elsewhere in the legal culture still holds the civil service examination very much in suspicion of--as we learned to call it in the 1960s--elitism.
Against this background, what's happening in Georgia looks all the more revolutionary, even though Governor Miller accomplished it by surprisingly simple means. In Georgia, much of the state's workforce had held what are known as "classified" jobs--the ones awarded by competitive examination and protected against dismissal. Last year's legislation simply declared that all newly filled jobs would be unclassified. While benefits remain similar for all employees, new hires get raises only on the basis of performance and can be promoted or demoted at managers' wish.
The new law's effects on firing, as opposed to hiring, come into sharp focus in an example Jonathan Walters cites in Governing magazine. According to Georgia officials, two state correctional officers were caught using cocaine. The one hired before July 1996 has pursued his rights to appeal, and the state not only will be shouldering large process costs but is on the hook for substantial back pay should he win. The guard hired after July 1996 is gone.
By decontrolling hiring as well as firing, however, Georgia has overthrown the civil service idea in both its old and new manifestations. Agencies can and sometimes do hire without competitive examination or other documentable yardsticks of competence--though in fact many state agencies voluntarily continue to use the tests. But those agencies can now choose to follow or dispense with earlier rules requiring that, for example, only the top ten scorers be considered for a vacancy, as they see fit.
Will favoritism and the spoils system reemerge? In an interview, Georgia Merit System commissioner Dan Ebersole and deputy commissioner Dana Russell conceded that critics have expressed fear that, in the absence of formal hiring rules, "someone's sorry brother-in-law" will wind up getting on the payroll. But, they say, managers frequently manipulated the old rules to achieve the same result. And, they say, these are not the old days in which there were few checks on the performance of a state agency. The press plays a strong watchdog role, a variety of other employment laws offer leverage to the employee who feels discriminated against or badly treated, and higher-ups in the state administration are more likely to ride herd on an underperforming agency.
Perhaps the most surprising outcome has been a lack of controversy. Ebersole and Russell say the state employee union, affiliated with the Service Employees International Union, initially fought the reforms but softened when legislators agreed to exempt employees hired before 1996. Now, they say, the reform is a "dormant topic."
Though delegations from other states have visited Atlanta to learn about the scheme, no other state has come close to following Georgia's drastic step (though on the related issue of teacher tenure, Oregon this summer took a notable leap, making itself the first state to abolish job security for educators in favor of two-year renewable contracts). Yet the movement for civil service reform is growing fast, abroad as well as at home. According to Ray Raymond of the British consulate in New York, the United Kingdom has significantly deregulated the hiring and dismissal of higher-level government managers, a Conservative measure that the new Labour government is expected to retain intact. And New Zealand, according to Osborne and Plastrik, "has swept away virtually its entire civil service system, freeing each department to create its own personnel rules."
In seeking to attract the best and eject the worst public servants, reformers will inevitably risk the charge that they are being "elitist." And yet the early reformers did want an elite civil service. That is why they focused on making the service hard to get into, but not hard to get kicked out of. Should we someday start taking government service seriously again, we may want to stop doing the reverse.
Walter Olson is senior fellow at the Manhattan Institute and the author of The Excuse Factory.
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